International Criminal Court Should Investigate Israel's War Crimes

A humanitarian tragedy is playing out in the Gaza Strip these days; a coastal enclave of about 360 km2 besieged from land and sea where more than 1.8 million people are living under the direst conditions. Israel is creating the most heinous and repugnant scenes in the beleaguered territory. So far, nearly 1,900 people have been massacred amidst the deafening silence of the international organizations and the world powers, around 30,000 homes have been destroyed and the mosques, schools, universities and UN facilities have sustained damages which seem to be irretrievable in the short-run. Electricity access it virtually cut off. The hospitals have no empty rooms to receive the injured, and access to food, water, shelter and medicine is deteriorating on a daily basis.

This is a brief description of how the people of Gaza, accustomed to the rainfall of rockets and bombs on their homes and cities on an hourly basis, have been living for about one month. Aren't those who have been inflicting such pains on the subjugated people of the a densely populated coastal sliver for some 7 years war criminals? It's not too difficult to draw a just conclusion; it just demands a little bit courage to enable one to stand up and speak out against the atrocities that are taking place and being condoned and rationalized by the biggest benefactor of Israel, the United States of America.

One of the prominent scholars and former UN officials who have outspokenly protested at Israel's treatment of the Palestinian citizens in Gaza, West Bank and East Jerusalem is Prof. John Dugard.

Dugard is a South African professor of international law. In 1998, he was appointed Chair in Public International Law at Leiden University, the Netherlands. He has taught at major American universities such as the Princeton University, Duke University, UC Berkeley and University of Pennsylvania. In late 2000, John Dugard was appointed as Chairman of a UN Commission on Human Rights inquiry commission on the situation of human rights in the Palestinian territories. Since 2008, he has been serving as a Judge ad hoc on the International Court of Justice at The Hague.

Prof. Dugard is known for his hard-hitting criticism of Israel's policies and practices which have provoked the fierce anger and fury of the Israeli lobby in the United States. He has academically argued that Israel has constantly violated the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid and should be held accountable.

To discuss the legal aspects of the Israeli brutalization of the Palestinian people in the Gaza Strip and the necessity for it to be tried in a criminal court, Iran Review did an exclusive interview with Prof. John Dugard, the prominent international law professor and former UN diplomat. What follows is the text of the interview.

Q: In a 2007 report to the United Nations, you stated that the policies of Israel resemble those of apartheid, violate the 1966 Convention on the Elimination of all forms of Racial Discrimination and are in breach of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. Many other scholars and researchers studying the Israeli-Palestinian conflict have also drawn the Israel-apartheid analogy. Would you please name some of the major Israeli policies and practices that have the characteristics of an apartheid system? Why don't the Israeli officials accept this legal argument and try to address it logically?

A: Apartheid is a loaded term, saturated with history and emotion. It instantly conjures up images and memories of discrimination, oppression, and brutality; indulgence, privilege, and pretension; racism, resistance, and, ultimately, emancipation. All of these images come to us, of course, through the history of apartheid in South Africa.

The UN treaty-monitoring body for the International Convention on the Suppression and Punishment of the Crime of Apartheid, known as the Group of Three, asserted at the time that ‘thus far there is no claim by any State party that apartheid, as defined by the Convention, exists anywhere else than in southern Africa’.

However, following isolated suggestions of apartheid in Israel/Palestine in the 1980s–1990s, the narrative of ‘Israeli apartheid’ gained prolificacy in the wake of the outbreak of the second Palestinian intifada in 2000.

Evidence of violations of Palestinian rights has been extensively documented by human rights organizations and UN monitoring bodies, and is readily available. The available evidence suggests that Israel is responsible for committing inhuman acts within the meaning of Article 2(a), (c), (d), and (f) of the Apartheid Convention. Israel’s policies and practices in the West Bank include denial of the right to life through state-sanctioned extra-judicial killings of Palestinians opposed to the occupation, including the targeting of political leaders and militants at times when they were not participating in hostilities and were thus protected by international humanitarian law. To aggravate matters, such targeted killings have often resulted in the killing of innocent bystanders as ‘collateral damage’. Arguably, South Africa’s judicially approved execution of militants was more forthright than Israel’s extrajudicial executions, which allow militants to be killed while at the same time allowing Israel to proclaim proudly that it does not practice the death penalty. Certainly apartheid South Africa did not practice systematic extrajudicial killings openly and with the public authorization of senior security and political officials as is done by Israel.

The right to life is also violated by Israel in the course of the Israeli military’s regular raids into Palestinian territory during which militants and innocent civilians are often killed. Excessive and disproportionate force against civilian demonstrators, frequently resulting in death, is an unexceptional occurrence in Palestine.

Q: In November 2012, the UN General Assembly overwhelmingly voted to grant Palestine non-member observer State status. How much do you consider it as important for Palestine to be recognized in the international organizations officially and establish formal diplomatic relations with the different world countries?

A: Israel does not want an independent Palestine. It prefers an occupied Palestine whose land it can steal by means of the Wall and settlements. Also it fears that an independent Palestine in the UN will make life difficult for Israel.

Q: The United States and its European allies usually justify Israel's military operations in the Occupied Territories and its time-to-time incursions into the Gaza Strip as "self-defense", claiming that Israel simply responds to the rockers fired into the Israeli cities by Hamas. Is the massive killing of civilians, mostly children and women, police officers, who by the virtue of international law are considered as civilians in the wartime, and other non-combatants justifiable as a practice of self-defense?

A: Israel is not acting in self-defense. Gaza is an occupied territory as Israel retains effective control over its borders, sea-space and airspace. Israel’s present offensive aims to maintain the occupation. It is enforcement action to maintain occupation and not self-defense. But such enforcement action must comply with international humanitarian law.

Q: From a legal point of view, is the continued siege of the Gaza Strip permissible and lawful? For about 7 years, Israel hasn't allowed the vital medicine, medical equipment, foodstuff and even construction materials to be imported into the Gaza Strip. What's your take on that?

A: Israel will not lift siege of Gaza until it is threatened by the international community to do so. This is why action on part of ICC is important.

Q: What's your perspective on the continued settlement constructions by Israel on the Palestinian lands? The settlements have been a major sticking point in the peace talks. Are the settlement constructions legal and permissible according to the principles of international law?

A: Settlements are unlawful under international law because Article 49(6) of the Fourth Geneva Convention to which Israel is a party makes the transfer of citizens of an occupying power into the territory of an occupied state unlawful. Customary international law also prohibits such transfers and settlements.

Q: Since 1948, the UN Security Council has issued 226 resolutions concerning Israel, the majority of which have condemned Israel for its violations of international law and the globally-recognized conventions which Israel is a signatory thereof. As of 2013, Israel has been condemned in 45 resolutions by the United Nations Human Rights Council. These resolutions make up around half of all country-specific resolutions passed by the Council. Despite all of these condemnations, Israel has never changed its attitude, and never felt obligated to respect the legally binding resolutions. Why has Israel become so lawless and anarchic? If the UNSC resolutions cannot bring Israel to its senses, then it would be virtually impossible to prevent it from constantly breaking the international law. Do you agree?

A: I agree that Israel is a lawless state. It manages to avoid accountability because it is protected by the USA. One cannot expect any action against Israel from the Security Council, the only effective body of the UN, because the US will veto it.

The only hope lies with the International Criminal Court. It can open an investigation into Israel’s criminal conduct without the support of the USA. In law the US, which is not a member of the ICC, cannot veto any action by the ICC.

In 2009 the Palestinian Authority made a declaration to the ICC under Article 12(3) of the Rome Statute accepting the jurisdiction of the ICC in respect of crimes committed in Palestine. In April 2012 the Prosecutor decided that because Palestine was not recognized as a state by the UN General Assembly it could not invoke the ICC. In November 2012 the General Assembly resolved that Palestine is a state.

This means that the ICC is now competent to investigate Israel’s crimes. Last week the Minister of Justice of the Palestine Authority confirmed that its declaration of 2009 is still valid and asked the ICC to start investigating Israel’s crimes.

In law the Prosecutor of the ICC is obliged to start an investigation. However, she insists that Palestine must first become a full member of the ICC. This is clearly desirable. But Abbas is restrained from doing so by the US. The Prosecutor of the ICC knows this. Also she knows that she will be criticized by the US and European states in the ICC if she opens an investigation. So, under pressure from the US and Europeans she does nothing.

Pressure should be brought to bear on the ICC Prosecutor to investigate Israel’s crimes. This is the only way to hold Israel accountable.